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MAT.APP.(F.C.) No.163/2016
RAJIV CHHIKARA
.....Appellant
Represented by: Mr.Nimesh Chib, Advocate
with Appellant in person
versus
SANDHYA MATHUR
.....Respondent
Represented by: Ms.Nandita Rao, Advocate
with Mr.Vikram Deswal,
Advocate and Respondent
in person
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
1.
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in the room before leaving for his job; beat her and ridicule her before
his friends. As facts goes, immediately after their marriage, they both
shifted to District Kannaur, Himachal Pradesh where the appellant
was serving as an assistant teacher in Central School, at Recknong
Peo, District Kinnaur, Himachal Pradesh. They lived there till May
27, 2004 when the respondent returned to Delhi to stay with her
parents.
rented house in Saad Nagar, Delhi for some time. Then they shifted
to a rented house at Dwarka, Delhi. However, per allegations of the
respondent herein there was no change in the behavior of the
appellant, who allegedly used to take drinks; beat her and that on
August 07,
took away his son to stay with his parents at village Jonti, Delhi. He
also took away all her belongings and household items. Though, he
returned at night, but left the next day i.e. on August 08, 2009, never
to join the company of his wife and that she lived all alone thereafter.
The respondent was always apprehensive of the appellant that he may
end her life.
3.
rather alleged that the issues were trivial arising out of child care,
upbringing, interference of her parents, her repeated demand to live
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near her parents, her refusal to take care of the respondents elderly
and ill parents etc. The appellant stated that he performed all his
martial obligations whole heartedly towards his wife and in-laws and
did whatever was expected of a husband and that he always took care
of his wife and son and since he is a heart patient, the respondent
herein was getting rid of him by filing divorce.
4.
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aspersions on her character and used to remark that she looks like
mother of two kids and definitely had physical relations with
someone. He used to comment that she is worst than whore. The
respondent also deposed that her father purchased her a LIG flat at
Sector 2, Rohini for 6.40 Lac, which they sold and then purchased a
flat at Dwarka in the joint names of the appellant and the respondent
and even at that time her father contributed 2.60 Lac. However, the
appellant did not return the money to her father.
7.
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2009 the appellant packed his bags, took their son to Village Jonti,
Delhi; returned that night; meted same treatment to her and finally left
her alone on August 08, 2009. The respondent stayed for sometime at
Dwarka and then shifted to her parents house.
8.
her to live in the company of the appellant and she apprehend danger
to her health and personal safety, the appellant though later gave an
apology letter dated June 18, 2010, Mark A to the Assistant
Commissioner of Police, CAW Cell, Dwarka, New Delhi to save his
skin.
herein would take her for outings on LTC tours but denied
suggestions put to her on all crucial issues viz. of beating her, casting
aspersions, not repaying money to her father, raising demand of
dowry or salary etc. The respondent admitted that in the year 2011
she did attend the marriage of her devar but because of the above
reasons.
9.
were no such issues which could not have been sorted out between
him and his wife and that the respondent and her family had been
torturing him. He deposed that he never had beaten his wife nor he
ever casted aspersions nor ever demanded dowry etc. He deposed that
as he was suffering from heart decease and as the respondent was not
inclined to stay with his parents the dispute arose. He also deposed
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In his cross-examination he
admitted having not filed any document relating to his heart ailment;
and also that he did not file any complaint qua any coercion while
writing an apology letter Mark A or of being assaulted mercilessly by
respondents father.
10.
In the light of the facts stated above, we would now like to read
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categorically admitted that he would never beat his wife in future nor
would make frivolous allegations upon her character; would return
the money he took from his father-in-law; would never demand
money or goods from his wife and would also not ask for his wifes
salary.
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was written by him only to satisfy false ego of his wife and to save
their marriage, but he did not produce any witness that he was ever
coerced to write Mark A.
rather revealed that such letter Mark A of dated June 18, 2010 was
written voluntarily by the appellant and that she never compelled him
to write such letter or that he ever made a verbatim copy of her
alleged hand written note.
15.
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Additionally, we also take note of the fact that the appellant had
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3.
It has been mutually agreed between us that
petitioner No.1 shall withdraw her case pending
under Section 13(1) (ia) bearing HMA No.463/09
and if petitioner No.2 fails in co-operating in
tendering his statement during the second motion in
that event the said petition will be resorted to its
original stage/position.
4.
It has been further mutually agreed between us
that petitioner No.1 shall withdraw her case pending
under Domestic Violence Act, within a week after
recording of statement of second motion.
5.
It has been further mutually agreed between us
that petitioner No.1 shall co-operate in quashing of
FIR bearing no.195/10, PS Palam within a month
after recording of statement of second motion.
6.
It has been further mutually agreed between us
that we shall withdraw our all respective cases filed
against each other or family members, if any.
7.
That the above settlement is arrived at between
the parties out of their free will and without any
coercion, fraud and force from any corner.
8.
We have also agreed that we shall not file any
sort of litigation in future relating to this marriage.
9.
Both the parties will be bound by the terms and
conditions of the mutual consent petition and
settlement deed Ex.C-4.
17.
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was also filed before the learned Judge, Family Court, Dwarka, Delhi,
but when it came up for hearing on October 29, 2015, the appellant
herein rather made a statement that he does not intend to proceed
further in the petition and hence withdrew his consent for divorce by
mutual consent. The said petition, thus, was held to be nonmaintainable and was dismissed as withdrawn.
19.
despite the fact that the respondent was always willing to abide by the
terms and conditions of the Settlement Deed dated May 24, 2014
Ex.C-4, entered in the joint statement recorded on the same day and
the respondent herein did not claim permanent alimony/maintenance
or the custody of her son. The second motion, though was filed just
before the expiry of 18 months statutory period, but the appellant
despite enjoying the benefits of settlement, put the respondent in a
disadvantageous position and caused her mental cruelty and financial
losses. An order dated January 23, 2016, of the learned Family Court
proves the respondents voluntarily giving up of her claim of alimony
and that she honoured her commitment arising out of the settlement
dated May 24, 2014. Thus, the withdrawal of consent by the appellant
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at any time prior to the divorce being granted by mutual consent, but
the fact is where he has entered into a settlement with his wife and
there being no allegation that he ever signed such settlement due to
force, fraud or under influence and also when the respondent had
acted upon such settlement by withdrawing her divorce petition;
foresaking her claim to custody of their son and of her permanent
alimony then the withdrawal of consent would have a different
connotation as it adds to the misery of the respondent.
21.
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vs. Jaya Ghosh wherein it was held that there can never be any
straight jacket formula or fixed parameters for determining the mental
cruelty
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ground for divorce, but per judgments reported as 2006 (2) Mh. LJ
307 Madhvi Ramesh Dudani vs. Ramesh K Dudani; and 2007 (4)
KHC 807 Shrikumar V. Unnithan vs. Manju K Nair, the concept of
cruelty has been blended by the Court with irretrievable breakdown
of marriage.
25.
21, 2016 Sandhya Kumari v. Manish Kumar, it was held that where it
is not possible for the husband and wife to live together except by
indulgence in mutual bickering targeting each other mentally,
insistence by one to retain matrimonial bond would be a relevant
factor to decide on the issue of cruelty, for the reason the obvious
intention of said spouse to continue with the marriage is not to enjoy
the bliss thereof, but to torment and traumatize each other.
26.
Similar is the situation in the present case, the parties are living
separately since the year 2009 and considering the conduct of the
parties, there seems to be no possibility of their joining together so to
insist to retain this matrimonial bond in the circumstances stated
above would rather be putting the respondent under intense mental
cruelty.
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27.
No costs.
(YOGESH KHANNA)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
December 08, 2016
M /VLD
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